Jiauddin Mia vs Indian General Navigation and Railway Co. Ltd. and Others

Deka, J.—This appeal arises out of 2 suits brought by, the plaintiff for compensation for loss of certain. articles contained in a packet out of three such packages booked on 5-1-49 from A.S. Ghat, Calcutta, they being covered by invoice No. 621 per Ex. A and booked at the office of the Indian General Navigation and Railway Company Ltd. in Calcutta. Out of the three packages consigned, only two were received by the consignee on 10-3-49.

The plaintiff, alleges that the loss, occurred due to the misconduct of the servants of defendants 1, 2 and 3, namely, the Indian General Navigation and Railway Company Ltd., the River Steam Navigation Company Ltd. and the Assam. Railway. The Dominion of India was made a party as defendant 4. The plaintiff pleaded that he had sustained a loss of Rs. 484/12/- the lost articles being worth Rs. 475/8/- and Rs. 9/47- being the proportionate freight for the lost articles. He further claimed damages at the rate of 25 P.C, and the-total claim was valued at Rs. 605/15/-.

All the defendants denied liability, the case of defendants 1 and 2 being that they were discharged from the liability since under Clause 11 of the Forwarding Note they were liable only for loss suffered by the consignor during transit by steamer up to a place where the articles were handed over to the Railway concerned. They claimed to have delivered the consignments on 14-2-49 at Chandpur to the Eastern Bengal Railway.

Defendants 3 and 4 denied liability on the ground that the loss, if any, had been caused while the articles were despatched through the Eastern Bengal Railway via Chandpur and Kulaura, and not after the articles were received by the Assam Railway (now the North Eastern Railway). They further pleaded that the suit was bad because of the Eastern Bengal Railway not being made a party to the suit.

The learned Munsiff who heard the suit, decreed the plaintiff''s suit to the extent of Rs. 484/12/- which amount represented the price of the articles lost with proportionate freight, & dismissed the claim for extra damages. An appeal way preferred against this decree by the defendants and on appeal, the learned Subordinate Judge, Silchar, reversed the decree of the first Court and dismissed the plaintiff''s suit.

The finding arrived at by the learned Subordinate Judge was that the defendants 1 and 2 were absolved from liability because of Clause 11 in the Forwarding Note. He found that the articles had been made over to the Eastern Bengal Railway by defendants 1 and 2, as alleged, and after that they had no liability to the plaintiff. He further found that the articles were received short by the Assam Railway and as such u/s 80, Indian Railways Act, defendants 3 and 4 had no liability to pay for the loss which occurred while the articles were in transit by the Eastern Bengal Railway, which has not been made a party to the suit.

Mr. Chaudhuri for the plaintiff appellant first contended that the liability of defendants 1 and 2 as common carriers was u/s 8 of the Carriers Act, and even though the loss might have occurred at a later stage, the carrier was not absolved from the liability.

The main reason on which Mr. Chaudhuri based his argument was that though in Clause 11 of the Forwarding Note it was stated that the steamer companies would merely act as agents after the goods were delivered to the Railways, the Assam Railway (defendant 3) having categorically denied that the steamer companies were acting as their agents, the liability of the steamer companies persisted and they could no longer take advantage of Clause 11 of the Forwarding Note.

This identical point had been considered in one of the decisions of this Court reported in Indian General Navigation & Rly. Co. Ltd. v. Krishna Kantadas 1949 Gau 25 (A). I was held there in that case in similar circumstances. the steamer companies cannot be made liable and that the contract in such a case was to be treated not as one indivisible contract, as contended, but as a series of contracts and that the steamer companies were absolved from liabilities no sooner they delivered the goods to any of the Railways concerned.

A common carrier could have its liability limited and it is only with a view to protect its interest that Clause 11 was inserted in the Forwarding Note. Therefore, both the parties were bound by that contract, the consignor having agreed to those terms.

It is immaterial what the railway companies had to say on the matter, but as between the consignor and the steamer companies they were bound by the agreement entered into between them, and as such the liability was limited by Clause 11 of the Forwarding Note and the plaintiff could not press for compensation once it was proved that the steamer companies had actually delivered the goods to one of the railway companies, as has been done in this case. Therefore, this contention has no force.

The second contention of Mr. Chaudhuri has been that since the railway had special knowledge as to whether the articles were received intact or some parcels were missing it was for them to place all the materials available, to prove this point conclusively and that the plaintiff had no responsibility in this matter.

The finding of the learned Subordinate Judge is that the railway had actually placed all available materials to prove that two railway wagons closed and sealed by the Eastern Bengal Railway had arrived at the destination namely, Silchar With seals intact from Kolaura and Chandpur, but on opening the same it was found that some of the packages were missing and as per Ex. D the Railway authorities at Silchar on 28-2-49 sent telegrams to all parties concerned informing them about the loss and asking for parcel guidance as they call it, from the Eastern Bengal Railway to which there was no reply.

The genuineness of this telegram has not been challenged and this document categorically mentions about one of the packages lost being covered by an invoice of 5-1-49 from A.S. Ghat to Silchar--this invoice being the one with which we are particularly concerned. The Assam Railway (defendant 3) had examined a witness to show that actually the articles that were available had been delivered to the consignee and one package could not be delivered since it had not arrived.

The learned Subordinate Judge accepted the evidence as sufficient and came to a finding that the articles were lost while in transit through the Eastern Bengal Railway. Defendant No. 3 has, therefore, discharged the onus that lay on it. The plaintiff has failed to prove that it was due to the misconduct or negligence on the part of the agents of defendants 1, 2 and 3 that the articles got lost. In other words the plaintiff failed to substantiate; his case against any of the defendants.

The result is that we dismiss the appeal, but in the circumstances of the case make no order for costs in this appeal.

Sarjoo Prosad, C.J.

I agree.